J-S50025-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JOHN EDWARD CHAIRMONTE :
:
Appellant : No. 2815 EDA 2015
Appeal from the Judgment of Sentence August 13, 2015
In the Court of Common Pleas of Bucks County Criminal Division at No(s):
CP-09-CR-0003833-2014
BEFORE: PANELLA, J., RANSOM, J., and PLATT*, J.
MEMORANDUM BY RANSOM, J.: FILED FEBRUARY 27, 2018
Appellant, John Edward Chairmonte, appeals from the judgment of
sentence entered August 13, 2015, after a jury convicted him of arson
endangering persons, arson endangering property, and insurance fraud.1
We affirm.
The relevant facts of this case are as follows. At about 8:25 a.m., on
February 10, 2014, two employees at a Bank of America branch in Bensalem
Township observed Appellant in the branch’s parking lot, where “a whole
bunch” of papers flew out of his automobile; he did not retrieve them. The
employees saw Appellant leave “in a rush” after they noticed a fire truck
pass by and heard sirens.
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1 18 Pa.C.S. §§ 3301(a)(1)(i), 3301(c)(3), and 4117(a)(2), respectively.
* Retired Senior Judge assigned to the Superior Court.
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At approximately 8:30 a.m., police and firefighters responded to a
report of a fire at Appellant’s home in Bensalem. After the fire was
extinguished, Battalion Chief Robert Sponheimer2 of the Bensalem Fire and
Rescue Department “began the investigation into its cause using a
systematic approach, starting his investigation at the areas of least damage
and progressing towards the more serious damage.” Trial Court Opinion
(TCO), 12/12/16, at 21. He “determined that the area of origin of the fire
was located in the kitchen on a countertop on the southwest wall.” Id.
Detective Stephen Clark of the Bensalem Township Police Department
was assigned to investigate the fire at Appellant’s house. At Detective
Clark’s request, Appellant came to the police station to be interviewed at
around 9:55 a.m. “Appellant related that when he returned home and saw
the fire he initially thought it was his neighbor’s house. When asked about
appliances, he responded that the only appliance that had been on was the
coffee maker.” TCO at 18. “After the interview, Appellant left the station on
his own at around 10:35 a.m.” Id.
[Continuing his investigation,] Chief Sponheimer conducted an
inspection of the electrical system which revealed the main
breaker to the house was still on but about ten breakers in the
service panel were in the tripped position, which is what he
expected to see. His investigation of the electrical wiring and
____________________________________________
2Chief Sponheimer was accepted as an expert in fire investigation at trial
without objection from defense counsel as to his credentials.
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receptacles in the kitchen revealed no arcing,[3] high-resistance
heating or other failures. He determined, from Appellant’s
statements and his own observation, that a mixer had not been
plugged in and could not be the cause of the heat source for the
fire. He identified an electric cord from the coffee maker that
was still plugged into an outlet, and a microwave that was
located next to the coffee maker. The microwave had been
attacked by fire and had protected the countertop underneath,
so Chief Sponheimer concluded the microwave was not the
cause of the fire. Chief Sponheimer pried the coffee maker off of
the countertop and observed that the plastic at the bottom with
the heating element was still intact.
. . . [S]heetrock that had been pulled down by the fire personnel
but did not burn through provided a timeline for the fire[, which]
helped [Chief Sponheimer] determine how long it actually
burned. . . . [T]he exhaust fan over the stove had dropped down
onto the stove during the fire[,] and . . . the burn patterns
showed the fire progressed towards the ductwork seeking air.
. . . [T]he gas range stove showed some charring but the four
knobs were all intact and not melted and were turned in the off
position. Chief Sponheimer also interviewed the fire fighters
who stated they did not turn the knobs off and they did not smell
any gas. Chief Sponheimer . . . located a toaster that was still
plugged in another area of the countertop area that had not
been damaged as much as the area of origin, and as a result,
the bottom of the toaster and some of its plastic pieces were still
intact. He also inspected a dishwasher located under the
counter which exhibited no signs of fire damage. . . .
Chief Sponheimer also interviewed Appellant who stated to him
that at the time of the fire he had been gone for about fifteen to
thirty minutes attempting unsuccessfully to make a deposit at
the Bank of America located approximately a mile and a half
from his residence. Appellant stated that after he woke up he
smoked a cigarette and decided to go to the bank but first
turned on the coffee maker to make a pot of coffee. . . .
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3 Chief Sponheimer explained that “arcing” is evidence that a device, such as
the coffeepot, “was plugged in, it had electric going to it, and there was a
failure or high heat.” Notes of Testimony (N.T.), 1/28/15, at 152.
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Based upon Appellant’s statements that he had been smoking,
Chief Sponheimer investigated the possibility that cigarettes had
been involved in creating the fire, but he only found evidence of
cigarettes in the living room. He [later testified] that when a
cigarette ignites a fire it creates a smoldering type of fire that
would take a longer period of time to create a flame, and this
was not consistent with what he observed in this case. . . .
TCO at 22-23 (citations omitted).
Almost three years prior to the arson at issue, on March 19, 2011, at
about 4:30 a.m., a fire had occurred at Appellant’s residence. For that fire,
Appellant had stated that, after smoking a cigarette, he had fallen asleep on
the sofa in the living room when his dog woke him, and he discovered
smoke throughout the house. Chief Sponheimer had also responded to that
fire and opined that it was incendiary – i.e., intentionally set -- and that an
open flame, such as a match or lighter was used to ignite available
combustibles located within a trash can.
Chief Sponheimer later learned from talking to Appellant that there
had actually been yet another fire at Appellant’s house on March 17, 2011.
No fire companies had been alerted about that incident, and no official
investigation was conducted.
[In Chief Sponheimer’s opinion,] the subject February 10, 2014
fire was incendiary and . . . an open flame had been used to
ignite ordinary available combustible materials, otherwise known
as “first fuel,” located on the countertop.[4] . . . [Throughout his
____________________________________________
4 During trial, Chief Sponheimer explained that “first fuels” typically ignite,
turn to ash, and disappear, and that, as noted in [National Fire Protection
Association (“NFPA”) Code] section 19.3.1.1, they often do not survive the
fire. TCO at 25 (citations omitted).
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investigation, Chief Sponheimer] used a systematic approach to
eliminate other potential sources of the fire, such as the
dishwasher, electric stove, gas range, mixer, and microwave,
that was based upon his observations of the damage and
condition of the residence and various items as well as
interviews of the personnel involved. . . . [Chief Sponheimer]
reevaluated the coffee maker and could not rule that out as a
source of ignition, so he contacted the Bureau of Alcohol,
Tobacco, Firearms and Explosives, or ATF, and a special agent
came and x-rayed it at the police station. He was later advised
by an agent who reviewed the x-rays and performed a physical
examination that there were no signs of failure within the coffee
maker.
TCO at 25-26 (citations omitted).
After obtaining search warrants, Detective Clark . . . obtained
Appellant’s financial records from various banks, including
Univest, TD Bank, Wells Fargo and Bank of America, and the
Parx Casino. In addition, Detective Clark obtained “a lot of his
banking information from the paperwork that [Appellant] threw
[and left] in the parking lot” of the Bank of America on the
morning of the fire. An analysis of these records revealed inter
alia . . . a large number of ATM withdrawals during the month of,
and prior to, the February 10, 2014 fire, including withdrawals in
February of $1,000 and $2,139.90 from the casino. . . .
[W]ithdrawals from the casino are achieved through the use of a
“Players Card” which is issued to casino customers for earning
“comps” for food, merchandise and money.
Id. at 19 (citation omitted).
[Arthur] Czajkowski was assigned to investigate the fire at
Appellant’s house for Allstate Insurance Company[ (“Allstate”).5]
. . . Based upon the results of his investigation, Mr. Czajkowski
eliminated the appliances as well as the recept[a]cles as the
point of origin and noted that only the toaster and coffee maker
had been plugged in. He determined that the point of origin and
____________________________________________
5 Mr. Czajkowski was accepted by the trial court as an expert witness
without objection from defense counsel as to his credentials. TCO at 26.
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deepest burn pattern was located about 6 inches in on the
countertop. He explained [during trial] that fire burns up and
out, and the burn patterns revealed that after the fire started it
attacked the plastic coffee pot, the George Foreman grill on top
of the microwave and then the cabinets. Mr. Czajkowski
concluded that the timing of the fire was less than 45 minutes
because “it didn’t compromise the drywall in the kitchen.”
. . . Appellant’s property had been insured for $179,553 and the
contents for $107,732. . . . Appellant had submitted claims from
the two prior fires on March 17 and 19, 2011, for which the
insurance company paid approximately $3,000 for the first claim
and $66,000 for second claim. . . . [T]he Allstate Insurance
estimate for damages to the residence resulting from the
February 10, 2014 fire was $88,885.36, of which $13,729.20
would be deducted for depreciation, and therefore a check for
approximately $75,156.16 would have been issued. That
amount, however, would have been subject to possible
modification and did not include the value of the contents.
. . . Allstate did not pay out on the claim [in 2014] because
Appellant did not cooperate with their investigation. . . .
Michael Keller is a senior electrical engineer for the fire research
laboratory run by [ATF,] who was accepted by the [trial c]ourt as
an expert in the field of electrical engineering aspects of fire
investigation and forensic examination of appliances. After Mr.
Keller had been contacted by special agent Jerry Petrovitch
around February 2014, Mr. Keller suggested that he x-ray the
coffee maker that was under investigation. Mr. Keller’s
subsequent analysis of the x-rays revealed that the “thermo
protection” built into the coffee maker had operated correctly
and it was therefore “highly unlikely that [the coffee maker] had
anything to do with causing the fire.”
Mr. Keller was sent the coffee maker and an electric can opener
in June of 2014. [Later, during trial, h]e described the operating
principles of coffee makers, and the thermal protection and cut-
out devices that are incorporated for safety, and explained that
all three of the thermal protection devices in the coffee maker
would have had to fail in order for the unit to go into a “thermal
runaway” condition in which it got hot enough to be the source
of ignition for the fire. He stated that the bottom of the coffee
maker was in “pretty good shape,” however, and explained that
the internal components including the circuit board and rubber
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tubes were intact, from which he concluded that the coffee
maker heater had not failed and ignited the unit. His analysis
also revealed that two of the thermal protection devices had
operated properly. He concluded that the heat that caused the
unit to melt was applied from the outside and not from the inside
of the unit. Mr. Keller’s analysis of the can opener did not reveal
anything remarkable, and he concluded that the heat had
“impinged” upon it from outside. . . .
Timothy Wilhelm, a certified fire investigator. . . [,] was retained
by the defense and accepted by the [trial c]ourt as an expert in
the field of fire investigation. . . . [B]ased upon results of the
testing by the ATF, he did not believe the coffee maker or
microwave caused of the fire, and he believed the cause of the
fire was undetermined. He later acknowledged that he did not
interview his client or any of the people who responded to the
fire, nor did he write a report of his analysis for his client as he
usually does.
TCO at 26-29, 31 (citations omitted). Appellant was arrested on June 12,
2014.
Prior to the commencement of trial, the Commonwealth filed a motion
in limine to admit evidence of Appellant’s “prior bad acts” – specifically,
evidence of two fires at Appellant’s residence in March 2011. TCO at 5.
“Defense counsel contested the admissibility of that evidence and a hearing
followed.” Id.
[During the pretrial “prior bad acts” hearing,] Chief Sponheimer
. . . testified that he conducted a fire investigation at Appellant’s
. . . residence . . . after a fire occurred there at 4:33 a.m. on
March 19, 2011. The damage resulting from that fire was
limited to the kitchen area but the remainder of the house did
suffer smoke damage. Chief Sponheimer determined that the
fire originated in a trash can under the cabinets. He observed
that there was no electricity in that area, and that in fact the
house had no electric service because the electric meter had
been previously disconnected as a result of another fire that had
occurred at the residence two days earlier on March 17, 2011.
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Chief Sponheimer noted that none of the local fire companies
had been notified of that fire.
Chief Sponheimer determined that the point of origin of the fire
had been in a covered plastic trash can inside a cabinet which
evidenced a common V burn pattern. He did not find a source of
ignition, such as discarded cigarettes or burned candles, but
found only cans and “ordinary” Class A fast burning combustibles
in the trash.[6] He characterized the fire as quick-moving and
localized, and stated that it was not a smoldering type of fire.
After investigating the fire, Chief Sponheimer questioned
Appellant who related that he smoked cigarettes and had been
using candles in the house because the power supply had been
disconnected to the residence as a result of the previous fire that
occurred on March 17, 2011. In fact Appellant stated that he
had requested the electric utility remove his meter a day or two
before. Appellant stated that he had been sleeping on a couch in
the living room which was located on the other side of the
drywall where the fire originated. Chief Sponheimer observed
that Appellant was fully dressed and did not appear like he just
woke up, and displayed “no signs of smoke or soot on his
person.” When Appellant was advised of the point of origin of
the fire, he suggested that perhaps his mother had thrown a
candle or dumped an ashtray into the trash.
Based upon his investigation and interviews of other fire
personnel on the scene as well as a process of elimination, Chief
Sponheimer concluded that “the fire was incendiary in nature,”
and that “an open flame was applied to available combustibles
within the trash can.” . . .
At the conclusion of the hearing, th[e trial c]ourt . . . granted
the Commonwealth’s motion[.]
TCO at 5-7 (citations omitted).
____________________________________________
6 Chief Sponheimer defined a “Class A material” as “wood, paper, plastic, if it
is ignited, it will burn, it will turn to ash, and it will not be there.” N.T.,
1/28/15, at 154.
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Next, “defense counsel presented a motion to suppress statements
made by Appellant.” TCO at 10 (citations omitted). During the suppression
hearing, Detective Clark testified that he had interviewed Appellant twice:
first on February 10, 2014; then, on February 12, 2014.
Detective Clark stated that, for the first interview on February 10,
2014, Appellant “came of his own free will, drove himself there, and after
the interview he was allowed to leave and he did leave.” Notes of Testimony
(N.T.), 1/28/15, at 75; see also id. at 81 (Appellant “left the police station
on his own”), id. at 83 (Appellant “got in his vehicle and followed” Detective
Clark “to [the] station”). Detective Clark acknowledged that, prior to the
interview, he had not read Appellant’s Miranda rights to him, because he
“was not . . . being interrogated.” Id. at 88. Detective Clark testified that,
“[a]t the time, we were trying to gather information about the fire. It wasn’t
an interrogation. [Appellant] wasn’t being charged at that time, it was just
an investigation.” Id. at 89.
Detective Clark continued that, for the second interview on
February 12, 2014, “shortly after 11 a.m.,” he arrived at the Extended Stay
America Hotel in Bensalem to deliver a property receipt to Appellant for
items that were recently seized from Appellant’s home after a search
warrant had been executed on the residence. N.T., 1/28/15, at 73.
According to Detective Clark, he was there “to drop off” the paperwork for
Appellant – “If I didn’t find him, I wouldn’t have had a conversation with
him,” and, instead, “would have had [the paperwork] posted on the mailbox
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or in the house.” Id. at 96-97. “When [Detective Clark] encountered
Appellant in the parking lot leaving the hotel,” TCO at 10, Appellant “was
seated in his vehicle.” N.T., 1/28/15, at 76. When Appellant saw Detective
Clark, he “rolled his window down[.]” Id. “Detective Clark questioned
[Appellant] in order to clarify some responses he had provided to the police
during an interview at the police station two days earlier right after the fire
on February 10, 2014.” TCO at 10 (citing N.T., 1/28/15, at 72-77).
Detective Clark further testified that Appellant never indicated that he did
not wish to speak with the detective. According to Detective Clark,
Appellant also never requested to speak with an attorney.
At the conclusion of testimony, defense counsel argued that all
statements made by Appellant during his February 12, 2014
encounter with Detective Clark should be suppressed because he
was allegedly represented by counsel at the time. Th[e trial
c]ourt rejected that argument and denied the motion to
suppress, placing [its] reasons of record in part as follows:
[Appellant] was not in custody. There was an investigation
that was ongoing. There was nothing that was stated on
this record to indicate that [Appellant] was even a target
of the investigation, let alone a person whose freedom was
restricted.
The officer was not restricted in pursuing his investigation
under the circumstances and, therefore, the motion to
suppress is denied.
A Frye hearing was then conducted on the defense motion to
preclude the Commonwealth’s expert witnesses, [Chief
Sponheimer and Mr. Czajkowski,] on the basis that they used an
incorrect methodology to determine the cause of the fire, and
that as a result the cause of the fire should have been
determined to be undetermined and not incendiary.
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TCO at 11 (citations omitted); see also N.T., 1/28/15, at 111-12 (Defense
counsel argued that the methodology, “commonly referred to as negative
corpus,” or the lack of specific evidence, was “not approved by the [National
Fire Protection Association (“NFPA”) Code] 921”).
During the Frye hearing, Appellant asked Chief Sponheimer to define
“negative corpus,” and the witness explained: “NFPA 921 has negative
corpus within it. It is to say that you can’t just come up with a cause [for a
fire,] because you feel it’s that way, that there’s no other reason and so it
has to be this.” N.T., 1/28/15, at 137. Chief Sponheimer agreed with
Appellant that “[n]egative corpus is a term frowned upon in the community
of doing fire investigations[.]” Id. at 137-38. Chief Sponheimer’s Frye
hearing testimony continued:
Q. [“Negative corpus”] indicates that the process of
elimination is an integral part of the scientific method; is that
right?
A. Yes.
Q. Alternative hypotheses should be considered and
challenged against the facts; is that right?
A. That is what it says.
Q. Elimination of a testable hypothesis by disproving a
hypothesis with reliable evidence is a fundamental part of the
scientific method.
Am I reading that correctly?
A. Yes.
Q. However, the process of elimination can be used
inappropriately, right? The process of determining the ignition
source for fire by eliminating all ignition sources found, known,
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or believed to have been present in the area of origin and then
claiming such methodology is proof of an ignition source for
which there is no supporting evidence of its existence is referred
to by some investigators as negative corpus.
Am I reading that properly?
A. Yes, you are.
Q. And negative corpus has typically been used in classifying
fires as incendiary although this process has also been used to
classify fires as accidental; is that correct?
A. Yes.
Q. This process is not consistent with the scientific method.
It is inappropriate and should not be used because it generates
untestable hypotheses.
Is that what it reads?
A. Yes.
Id. at 137-39. Appellant then suggested to Chief Sponheimer that “what
[he] did . . . was come up with a negative corpus,” and Chief Sponheimer
“disagree[d].” Id. at 140. Chief Sponheimer explained that his method was
not negative corpus, because he “didn’t just go there and go there’s nothing
else here, it has to be this.” Id. at 143. He continued: “[D]uring the
scientific method and the systematic approach, you interview witnesses, you
collect data[.]” Id. at 142. “He noted that Appellant had placed himself at
the scene of the fire within one half hour, but had reported no problems with
any of the appliances, was not smoking or using candles, and had cleaned
the area.” TCO at 12 (citations omitted). Chief Sponheimer “tested other
materials in and around the areas.” N.T., 1/28/15, at 145. He “saw no
signs” of accelerant but tested for it, anyway. Id. at 149. As the trial court
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summarized: “Chief Sponheimer testified that in investigating the subject
fire, he had eliminated all accidental and natural causes, tested various
hypotheses, and concluded that the fire was incendiary. The hypotheses
included a faulty coffee maker and electrical outlet, and the possibility that
the fire was incendiary in nature.” TCO at 12 (citations omitted). “He
therefore ruled out the possibility of an accidental fire, and stated that he
concluded that the ignition source was an open flame of undetermined
nature that ignited class A ordinary combustible materials.” Id.
Chief Sponheimer also noted that the NFPA code does not state that
“negative corpus” can never be used by investigators:
First, it says some investigators; under the reading you have
there, it says some investigators believe this is negative corpus,
not all. I’ll show you the line if you would like me to. . . . In the
middle: some investigators, negative corpus (indicating) It
does not say all investigators. . . .
It’s just an area that says, again, it’s appropriate use for some
investigators. This is a guide, and the guide says some
investigators feel this or refer to this as negative corpus, not
all[.]
N.T., 1/28/15, at 141-42.
The next witness at the Frye hearing was Mr. Czajkowski, who
concluded that the 2014 fire began when an open flame had been
intentionally applied to available combustibles. TCO at 12 (citations
omitted).
Mr. Czajkowski stated that NFPA 921 does not specifically
exclude negative corpus as a potential avenue for fire
investigation. He stated that NFPA 921 permits an investigator’s
knowledge and experience to eliminate negative corpus and it
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allows for the hypothesizing of an ignition source, even if one is
not present.
Id. at 13 (citations omitted). After argument, the trial court denied the
motion to exclude the testimony of the Commonwealth’s expert witnesses.
Id.
In February 2015, following trial, the jury convicted Appellant of all
charges. Prior to sentencing, in March 2015, Appellant filed a motion for
extraordinary relief, seeking arrest of judgment or, in the alternative, a new
trial, because “[t]he evidence was insufficient to sustain the verdict[.]” Mot.
for Extraordinary Relief Pursuant to Pa.R.Crim.P. 704(b), 3/18/15, at 1.
Later that month, the trial court denied this motion.
Following Appellant’s sentencing in August 2015, Appellant’s trial
counsel filed a notice of appeal and a motion to withdraw, which the trial
court granted in September 2015. The public defender was appointed to
represent Appellant. However, shortly thereafter, Appellant privately
retained new counsel for this appeal.
On October 2, 2015, th[e trial c]ourt issued an Order directing
Appellant to file a Pa.R.A.P. 1925(b) Concise Statement of the
Errors Complained of on Appeal no later than twenty one (21)
days from the date of the Order.
On October 13, 2015, [Appellant’s appellate counsel] filed a
“Motion for Extension of Time to File 1925(b),” on the basis that
the “trial transcripts were not yet complete” and he needed
“additional time to meet with and consult with his client who is
incarcerated[,” which was granted.]
TCO at 3.
On January 27, 2016, after concluding that Appellant’s failure to
submit a timely Statement of Errors had prevented th[e trial
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c]ourt from adequately addressing the merits of the appeal, th[e
trial c]ourt filed an Opinion suggesting that the issues had been
waived and the appeal should be quashed.
On February 26, 2016, upon consideration of Appellant’s “Motion
to Remand for Submission of 1925(b) Statement,” the Superior
Court of Pennsylvania issued an Order remanding this matter to
th[e trial c]ourt for a period of sixty (60) days and directing that
“Appellant shall be permitted to file in the trial court and serve
upon the trial judge a Pa.R.A.P. 1925(b) statement of errors
complained of on appeal, within twenty-one (21) days of the
date that this Order is filed.”
The Order further directed that the “Trial judge shall prepare a
supplemental opinion, pursuant to Pa.R.A.P. 1925(a), in
response to the Rule 1925(b) statement, within thirty (30) days
of the date the statement is received.”
Id. at 4. Appellant finally filed a statement of matters complained of on
appeal, and the trial court issued a responsive opinion.
Appellant now presents five issues for our review:
A. Whether the verdict was against the weight of the
evidence to convict [Appellant] of arson, arson with intent to
commit insurance fraud and insurance fraud where there was no
evidence that [Appellant] intentionally set his house on fire?
B. Whether the verdicts were insufficient as a matter of law
to convict[ Appellant] of arson, arson with intent to commit
insurance fraud and insurance fraud where the Commonwealth
failed to prove intent?
C. Whether the trial court erred in granting the
Commonwealth’s motion to admit prior bad acts?
D. Whether the trial court erred in denying the defense
motion to suppress statement?
E. Whether the trial court erred in denying the defense
motion in limine to exclude testimony of expert witness?
Appellant’s Brief at 5.
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Weight of the Evidence
As a preliminary matter, generally, a challenge to the weight of the
evidence must be preserved by a motion for a new trial. Pa.R.Crim.P. 607.
The Rule provides:
A claim that the verdict was against the weight of the evidence
shall be raised with the trial judge in a motion for a new trial:
(1) orally, on the record, at any time before sentencing;
(2) by written motion at any time before sentencing; or
(3) in a post-sentence motion.
Pa.R.Crim.P. 607(A)(1)-(3). “As noted in the comment to Rule 607, the
purpose of this rule is to make it clear that a challenge to the weight of the
evidence must be raised with the trial judge or it will be waived.”
Commonwealth v. Gillard, 850 A.2d 1273, 1277 (Pa. Super. 2004). A
claim challenging the weight of the evidence generally cannot be raised for
the first time in a Rule 1925(b) statement. Commonwealth v. Burkett,
830 A.2d 1034, 1037 (Pa. Super. 2003). An appellant’s failure to avail
himself of any of the prescribed methods for presenting a weight of the
evidence issue to the trial court constitutes waiver of that claim, even if the
trial court responds to the claim in its Rule 1925(a) opinion. Id. at n.3.
Instantly, Appellant failed to challenge the weight of the evidence
before the trial court in a motion for a new trial. While Appellant’s motion
for extraordinary relief pursuant to Pa.R.Crim.P. 704(b) “move[d] the [trial]
court for a new trial,” his basis for this request was that “[t]he evidence was
insufficient to sustain the verdict[.]” Mot. for Extraordinary Relief Pursuant
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to Pa.R.Crim.P. 704(b), 3/18/15, at 1. Nowhere within his motion for
extraordinary relief – nor anywhere else on the record before sentencing --
did Appellant challenge the weight of the evidence. He also did not file any
post-sentence motions. Rather, Appellant raised his weight claim for the
first time in his Rule 1925(b) statement. Thus, his first issue on appeal is
waived. See Pa.R.Crim.P. 607; Gillard, 850 A.2d at 1277; Burkett, 830
A.2d at 1037.
Sufficiency of the Evidence
Appellant claims that the Commonwealth failed to prove the elements
of arson endangering persons, arson endangering property, and insurance
fraud. Appellant contends that “the Commonwealth failed to prove intent.”
Appellant’s Brief at 34.
A claim challenging the sufficiency of the evidence presents a question
of law. Commonwealth v. Sullivan, 820 A.2d 795, 805 (Pa. Super. 2003)
(citation omitted).
Evidence will be deemed sufficient to support the verdict when it
establishes each material element of the crime charged and the
commission thereof by the accused, beyond a reasonable doubt.
. . . When reviewing a sufficiency claim the court is required to
view the evidence in the light most favorable to the verdict
winner giving the prosecution the benefit of all reasonable
inferences to be drawn from the evidence.
Id. (citation omitted). As a reviewing court, we may not weigh the evidence
or substitute our judgment for that of the fact-finder, who is free to believe
all, part, or none of the evidence. Commonwealth v. Haughwout, 837
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A.2d 480, 484 (Pa. Super. 2003). “Furthermore, the Commonwealth may
sustain its burden of proving every element of the crime beyond a
reasonable doubt by means of wholly circumstantial evidence.”
Commonwealth v. Lewis, 911 A.2d 558, 563 (Pa. Super. 2006) (citation
and internal brackets and quotation marks omitted).
An intent is a subjective frame of mind, it is of necessity difficult
of direct proof. We must look to all the evidence to establish
intent, including, but not limited to, appellant’s conduct as it
appeared to his eyes. Intent can be proven by direct or
circumstantial evidence; it may be inferred from acts or conduct
or from the attendant circumstances.
Id. at 564 (citation and internal brackets omitted).
Here, Appellant specifically argues:
There is no evidence that the Appellant intentionally set fire to
his house or intentionally attempted to collect insurance
fraudulently. The Appellant indicated to several witnesses that
he recalled that he had left the coffee pot on and at least one
other appliance. There was not any evidence of accelerants that
were used in the house. . . . The absence of evidence with
regard to intent requires this [C]ourt [to] reverse the conviction.
Appellant’s Brief at 36.
Appellant was convicted of two subsections of the arson statute, 18
Pa.C.S. § 3301. The first subsection, for the charge of arson endangering
persons, states:
A person commits a felony of the first degree if he intentionally
starts a fire or causes an explosion, or if he aids, counsels,
pays or agrees to pay another to cause a fire or explosion,
whether on his own property or on that of another, and if:
(i) he thereby recklessly places another person in danger
of death or bodily injury, including but not limited to a
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firefighter, police officer or other person actively engaged
in fighting the fire[.]
Id. § 3301(a)(1)(i) (emphasis added). The second subsection, for the
charge of arson endangering property, states:
A person commits a felony of the second degree if he
intentionally starts a fire or causes an explosion, whether on
his own property or that of another, or if he aids, counsels, pays
or agrees to pay another to cause a fire or explosion, and if: . . .
he commits the act with intent of destroying or damaging
any property, whether his own or of another, to collect
insurance for such loss.
Id. § 3301(c)(3) (emphasis added).
Appellant was also convicted of insurance fraud pursuant to 18 Pa.C.S.
§ 4117(a)(2):
A person commits an offense if the person does any of the
following: . . .
(2) Knowingly and with the intent to defraud any
insurer or self-insured, presents or causes to be presented
to any insurer or self-insured any statement forming a part
of, or in support of, a claim that contains any false,
incomplete or misleading information concerning any fact
or thing material to the claim.
Id. (emphasis added).
As noted above, the Commonwealth may prove every element of these
crimes – including intent – beyond a reasonable doubt by means of wholly
circumstantial evidence. Lewis, 911 A.2d at 563. Here, while there was no
direct evidence presented proving that Appellant “intentionally start[ed] a
fire” in his residence, 18 Pa.C.S. § 3301(a)(1)(i), (c)(3), the jury heard
ample circumstantial evidence, which we view “in the light most favorable”
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to the Commonwealth as “the verdict winner.” Sullivan, 820 A.2d at 805.
This evidence included the testimony of the Commonwealth’s fire
investigation experts, Chief Sponheimer and Mr. Czajkowski, who ruled out
all other possible, accidental explanations for the cause of the fire, including
the coffee maker, discarded cigarettes, the dishwasher, the electric stove,
the gas range, the microwave, the mixer, and the receptacles.7 Additionally,
the jury heard testimony from Mr. Keller, a senior electrical engineer with
ATF, that the coffee maker, the kitchen electrical receptacle, and the gas
range could not have been the source of the fire. Having eliminated other
potential sources of the fire, Chief Sponheimer concluded that the fire was
incendiary in nature and that an open flame had been applied to available
combustibles.
Appellant’s bank transactions and records were also presented to the
jury, from which it could reasonably infer his financial uncertainty and hence
his motive for intentionally setting a fire in his residence in order to collect
the insurance proceeds. See Sullivan, 820 A.2d at 805. Appellant’s intent
to set the fire and to collect an insurance payment fraudulently was further
supported by evidence of two fires of a similarly suspicious nature that
occurred at Appellant’s residence on March 17 and 19, 2011, after which he
____________________________________________
7Appellant’s own expert witness, Mr. Wilhelm, agreed that neither the coffee
maker nor the microwave were the cause of the fire.
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had collected insurance payments of approximately $3,000 for the first claim
and $66,000 for the second claim.8
“[L]ooking to all [of] the evidence,” the jurors “inferred from
[Appellant’s] acts [and] conduct [and] from the attendant circumstances”
that he intended to start a fire and intended to defraud his insurance
company. Lewis, 911 A.2d at 563-64. The jury found this evidence to be
sufficient, and we will not substitute our judgment for theirs. Haughwout,
837 A.2d at 484. Therefore, we agree with the trial court that:
While direct evidence of Appellant’s intent, such as an unlikely
admission by him that he intended to burn his house down for
the insurance proceeds, was not available, the jury could
reasonably conclude from circumstantial evidence derived from
the expert witness testimony that Appellant carried out his
motive and intentionally ignited the fire. As noted, those experts
conducted a thorough analysis of the fire scene and
systematically eliminated each of the potential causes of the fire.
. . . Clearly, the totality of the circumstantial evidence provided a
basis for the jury to reasonably conclude that Appellant had the
requisite intent to create a fire inside his house[.]
TCO at 38. Thus, we conclude that Appellant’s second issue merits no relief.
Admissibility of Prior Bad Acts
Appellant next argues that the trial court “erred in granting the
Commonwealth’s motion to admit prior bad acts.” Appellant’s Brief at 37.
Specifically, Appellant asserts “that the trial court erred when it ruled that
____________________________________________
8 The investigator for Allstate testified that, had Appellant not been
suspected of arson, he would have received a payment of $75,156.16 for
damages in the 2014 fire.
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evidence of a prior 2011 fire at the Appellant’s house could be admitted.”
Appellant’s Brief at 37.9 He concludes that “[t]he only purpose in admitting
this evidence was to prejudice the Appellant” and that the trial court thus
“erroneously admitted evidence that was much more prejudicial than
probative[.]” Id. at 38.
“The admissibility of evidence is a matter for the discretion of the trial
court and a ruling thereon will be reversed on appeal only upon a showing
that the trial court committed an abuse of discretion.” Commonwealth v.
Towles, 106 A.3d 591, 603 (Pa. 2014) (citations omitted).
Evidence of crimes, wrongs, or other acts is controlled by Pa.R.E.
404(b)(1)-(2):
(1) Prohibited Uses. Evidence of a crime, wrong, or other act is
not admissible to prove a person’s character in order to show
that on a particular occasion the person acted in accordance with
the character.
(2) Permitted Uses. This evidence may be admissible for
another purpose, such as proving motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake, or
lack of accident. In a criminal case this evidence is admissible
only if the probative value of the evidence outweighs its potential
for unfair prejudice.
____________________________________________
9 The evidence presented during the prior bad acts pretrial hearing and
during trial demonstrated that there were two fires at Appellant’s home in
2011. However, Appellant’s Brief only references “a prior 2011 fire.”
Appellant’s Brief at 37; see also id. at 38. Nevertheless, our analysis and
the trial court’s analysis applies equally to both 2011 fires.
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After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinion of the Honorable
Clyde W. Waite, we conclude that Appellant’s third issue merits no relief.
The trial court opinion comprehensively discusses and properly disposes of
that question as follows:
As noted above, at the start of the trial, th[e trial c]ourt heard
testimony regarding the Commonwealth’s motion in limine to
introduce evidence of the suspicious fire[s] that occurred [in]
2011 at Appellant’s residence. Th[e trial c]ourt noted that Chief
Sponheimer had determined both the March 19, 2011 fire and
the instant February 10, 2014 fire were … incendiary,[10] and
[the trial court] therefore reasoned that there was enough of a
common basis and sufficient connection between the nature of
the two fires that a fact-finder should be allowed to determine
whether or not the prior act demonstrated motive, plan, or
opportunity for obtaining financial gain. While the evidence the
Commonwealth seeks to introduce is generally and intentionally
prejudicial to a defendant, and in this instance the evidence of
the prior fire was certainly prejudicial, it was not admitted to
prove Appellant’s character, but to reveal the existence of
Appellant’s knowledge of, familiarity with, and therefore ability
to plan, prepare and carry out the arson of his residence. It was
clear that the probative value of the evidence of the prior fire
outweighed its prejudicial effect.
TCO at 39-40. Accordingly, with respect to Appellant’s third issue on appeal,
we affirm on the basis of the trial court’s opinion.
____________________________________________
10 We also note that the fire on March 19, 2011, like the 2014 fire, was ruled
incendiary by Chief Sponheimer after he eliminated other possible,
accidental sources, including discarded cigarettes or burned candles.
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Admissibility of Statements
Appellant further argues that “[t]he trial court erred in denying the
defense motion to suppress a series of statements that were made to
Detective Clark in this matter.” Appellant’s Brief at 39.
At the outset, we recite our standard of review:
In addressing a challenge to a trial court’s denial of a
suppression motion, we are limited to determining whether the
factual findings are supported by the record and whether the
legal conclusions drawn from those facts are correct. Since the
Commonwealth prevailed in the suppression court, we may
consider only the evidence of the Commonwealth and so much of
the evidence for the defense as remains uncontradicted when
read in the context of the record as a whole. Where the record
supports the factual findings of the trial court, we are bound by
those facts and may reverse only if the legal conclusions drawn
therefrom are in error.
Commonwealth v. Scarborough, 89 A.3d 679, 683 (Pa. Super. 2014)
(citation and internal brackets omitted). In addition, “[o]ur scope of review
is limited to the evidence presented at the suppression hearing.”
Commonwealth v. Mackey, ___ A.3d ___, 2017 PA Super 403, 2017 WL
6506599, at *2 (Pa. Super. Dec. 20, 2017) (citation omitted).
It is a fundamental precept of constitutional law that a suspect
subject to a custodial interrogation by police must be warned
that he has the right to remain silent, that anything he says may
be used against him in court, and that he is entitled to the
presence of an attorney. Miranda, 384 U.S. at 469, 86 S.Ct.
1602. If an individual is not advised of those rights prior to a
custodial interrogation, any evidence obtained through the
interrogation is inadmissible at trial. In re K.Q.M., 873 A.2d
752, 755 (Pa.Super.2005). The Miranda safeguards are
triggered “whenever a person in custody is subjected to either
express questioning or its functional equivalent.” Rhode Island
v. Innis, 446 U.S. 291, 292, 100 S.Ct. 1682, 64 L.Ed.2d 297
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(1980) ... (defining interrogation to include express questioning
and its functional equivalent).
Commonwealth v. Freeman, 128 A.3d 1231, 1240 (Pa. Super. 2015)
(emphasis added). If a defendant “was not in custody at the time he made
the statements” to police, “no Miranda warnings were required.”
Commonwealth v. Davis, 861 A.2d 310, 318 (Pa. Super. 2004).
The Fourth Amendment of the Federal Constitution and Article I,
Section 8 of the Pennsylvania Constitution protect individuals
from unreasonable searches and seizures. In Fourth
Amendment jurisprudence, there are three categories of
interactions between citizens and the police:
The first category is a “mere encounter” (or request for
information) which need not be supported by any level of
suspicions, but carries no official compulsion to stop or respond.
The second, an “investigative detention,” must be supported by
a reasonable suspicion; it subjects a suspect to a stop and a
period of detention, but does not involve such coercive
conditions as to constitute the functional equivalent of an arrest.
Finally, an arrest or “custodial detention” must be supported by
probable cause.
Commonwealth v. Parker, 161 A.3d 357, 362 (Pa. Super. 2017) (internal
brackets, citations, and quotation marks omitted). When examining whether
police contact constitutes a mere encounter or an investigatory detention,
we employ the following precepts:
To determine whether a mere encounter rises to the level of an
investigatory detention, we must discern whether, as a matter of
law, the police conducted a seizure of the person involved. To
decide whether a seizure has occurred, a court must consider all
the circumstances surrounding the encounter to determine
whether the demeanor and conduct of the police would have
communicated to a reasonable person that he or she was not
free to decline the officers’ request or otherwise terminate the
encounter. Thus, the focal point of our inquiry must be whether,
considering the circumstances surrounding the incident, a
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reasonable person innocent of any crime, would have thought he
was being restrained had he been in the defendant’s shoes.
Commonwealth v. Collins, 950 A.2d 1041, 1046–47 (Pa. Super. 2008) (en
banc) (citation omitted) (holding that interaction between the petitioner and
police was a mere encounter where the petitioner was approached in his
parked car, in a public parking lot, by an officer with his police vehicle
headlights activated).
No constitutional provision prohibits police officers from
approaching a citizen in public to make inquiries of them.
However, if the police action becomes too intrusive, a mere
encounter may escalate into an investigatory [detention] or
seizure. The term ‘mere encounter’ refers to certain non-
coercive interactions with the police that do not rise to the level
of a seizure of the person under the fourth amendment. For
example, a mere encounter transpires when an officer
approaches a citizen on a public street for the purpose of making
inquiries.
In contrast, an investigative detention occurs when a police
officer temporarily detains an individual by means of physical
force or a show of authority for investigative purposes. In other
words, in view of all the circumstances, if a reasonable person
would have believed that he was not free to leave, then the
interaction constitutes an investigatory detention.
Commonwealth v. Cauley, 10 A.3d 321, 325–26 (Pa. Super. 2010)
(internal brackets, citations, and quotation marks omitted).
For the first interview on February 10, 2014, Appellant “came of his
own free will” to the police station, “drove himself there, and after the
interview he was allowed to leave and did leave.” N.T., 1/28/15, at 75; see
also id. at 81 (Appellant “left the police station on his own”), 83 (Appellant
“got in his vehicle and followed” Detective Clark “to [the] station”).
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Detective Clark’s purpose in conducting the first interview was “to gather
information about the fire.” N.T., 1/28/15, at 89; see also id. at 88
(according to Detective Clark, Appellant was not “being interrogated”).
When we analyze this police-citizen interaction, the fact that Appellant
voluntarily went to the police station demonstrates that there was “no official
compulsion to stop or respond,” thereby indicating that this interview was a
mere encounter. Parker, 161 A.3d at 362. Detective Clark did not engage
in any “physical force or a show of authority for investigative purposes.”
Cauley, 10 A.3d at 325. Detective Clark merely intended to “make
inquiries” of Appellant, which is not prohibited by any constitutional
provision. Id. Based upon the evidence confined to the suppression court
record, Mackey, 2017 WL 6506599, at *2, we agree with the trial court’s
assessment that, “[c]learly, Appellant was not in custody and was free to
leave at any time, and in fact did leave at his discretion.” TCO at 40; see
also N.T., 1/28/15, at 110 (the trial court stated on the record that
Appellant “was not in custody” and was not “a person whose freedom was
restricted”).
As for the second interview on February 12, 2014, Detective Clark
originally arrived at the Extended Stay America Hotel to deliver a property
receipt to Appellant for items that were taken from his home as part of the
investigation and not to interview Appellant. According to Detective Clark’s
testimony, had Appellant not been at the hotel, the detective would still
have arranged for Appellant to receive the paperwork. This second interview
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took place in the open and public location of the hotel’s parking lot as
Appellant was leaving; Appellant was seated in his own automobile and
chose to “roll[] his window down.” N.T., 1/28/15, at 76. At no time during
this second interview did Appellant state that he did not wish to speak with
Detective Clark or request to speak with an attorney.
Based upon Detective Clark’s testimony from the suppression court
record only, Mackey, 2017 WL 6506599, at *2, Appellant was free to leave
in his truck at any time during this second interview. No evidence was
presented to suggest that “the police conducted a seizure” of Appellant,
which would have elevated a mere encounter to the level of an investigatory
detention. See Collins, 950 A.2d at 1046-47. Additionally, the interaction
occurred in a parking lot, in public, while Appellant was in his own vehicle; a
similar factual situation was found to be a mere encounter in Collins. Id.
(concluding interaction was mere encounter where the defendant was
approached by police in his parked car, in a public parking lot); see also
Cauley, 10 A.3d at 325. Consequently, we agree with the trial court the
evidence indicated that Appellant was not in custody during this second
interview, either. TCO at 42 (the trial court “determined that Appellant had
not been in custody at the time of his encounter with Detective Clark in the
parking lot of the Extended Stay America Hotel”).
Because Appellant was not in custody during either the first interview
on February 10, 2014, or the second interview on February 12, 2014, no
Miranda warnings were required. Davis, 861 A.2d at 318; see also
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Freeman, 128 A.3d at 1240. Hence, we approve of the trial court’s
conclusion that “no Miranda warnings were required” in advance of either
interview. TCO at 41; see also TCO at 42 (“clearly [Appellant] had not
been detained or his freedom restricted in any manner at that time such that
Miranda warnings were required” for the second interview). Appellant’s
fourth issue is thereby meritless.
Admissibility of Expert Testimony
Finally, Appellant argues that “[t]he trial court erred in denying the
defense motion in limine to exclude testimony of expert witness.”
Appellant’s Brief at 41.
Our standard of review for the challenges to the admission of expert
testimony is as follows:
The admission of expert testimony is a matter committed to the
discretion of the trial court and will not be disturbed absent an
abuse of that discretion. An abuse of discretion is not merely an
error of judgment, but if in reaching a conclusion the law is
overridden or misapplied, or the judgment exercised is
manifestly unreasonable, or the result of partiality, prejudice,
bias or ill-will, as shown by the evidence or the record, discretion
is abused.
Nobles v. Staples, Inc., 150 A.3d 110, 113 (Pa. Super. 2016) (citations
and internal quotation marks omitted).
Pennsylvania has specifically adopted the standard of Frye v. United
States, 293 F. 1013 (D.C. Cir. 1923), with respect to scientific evidence –
i.e., such evidence must have “general acceptance” in the relevant scientific
community. See Commonwealth v. Dunkle, 602 A.2d 830 (Pa. 1992);
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Commonwealth v. Topa, 369 A.2d 1277 (Pa. 1977). Pa.R.E. 702
incorporates the Frye standard and now governs the admissibility of expert
testimony and scientific facts in Pennsylvania.11 Rule 702 states:
A witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of an
opinion or otherwise if:
(a) the expert’s scientific, technical, or other specialized
knowledge is beyond that possessed by the average
layperson;
(b) the expert’s scientific, technical, or other specialized
knowledge will help the trier of fact to understand the
evidence or to determine a fact in issue; and
(c) the expert’s methodology is generally accepted in the
relevant field.
Here, Appellant has not challenged the “scientific, technical, or other
specialized knowledge” of either of the Commonwealth’s expert witnesses,
Chief Sponheimer and Mr. Czajkowski, pursuant to Pa.R.E. 702(a)-(b); the
expert knowledge of both witnesses was accepted by the trial court without
any objection from defense counsel. The trial court therefore held a pretrial
hearing on Pa.R.E. 702(c) only, during which Appellant contended that the
methodology used by the Commonwealth’s expert witnesses to determine
____________________________________________
11The committee notes accompanying Pa.R.E. 702 state that the adoption of
Rule 702 did not alter “Pennsylvania’s adoption of the standard in Frye v.
United States, 293 F. 1013 (D.C. Cir. 1923). The rule applies the ‘general
acceptance’ test for the admissibility of scientific, technical, or other
specialized knowledge testimony. This is consistent with prior Pennsylvania
law.”
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the cause of the fire was not approved by the National Fire Protection
Association code, NFPA 921.12 Specifically, Appellant claimed that Chief
Sponheimer and Mr. Czajkowski had used a “negative corpus,” which he
alleged is contrary to the scientific method.
However, Chief Sponheimer testified during the Frye hearing that the
NFPA code does not state that “negative corpus” can never be used by
investigators. N.T., 1/28/15, at 141-42 (NFPA 921 “says some investigators
believe this is negative corpus”; “[i]t does not say all investigators”; “it’s
appropriate for some investigators”; “the guide says some investigators
feel this or refer to this as negative corpus, not all” (emphasis added)).
Mr. Czajkowski agreed with Chief Sponheimer and testified that NFPA
921 does not specifically exclude “negative corpus” or the lack of specific
evidence as a potential avenue for fire investigation. He explicitly stated
that NFPA 921 permits an investigator’s knowledge and experience to
eliminate negative corpus and allows for the hypothesizing of an ignition
source, even if one is not present.13
____________________________________________
12Chief Sponheimer later relied upon NFPA 921 during trial to support his
opinion that the fire on March 19, 2011, was incendiary. N.T., 1/30/15, at
180-82. Mr. Czajkowski made no reference to NFPA 921 during trial.
13 Even if the NFPA 921 did wholly exclude “negative corpus,” Chief
Sponheimer disagreed with Appellant’s labelling of his procedure as such and
explained during the Frye hearing why he believed Appellant had
mischaracterized his approach.
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Moreover, Appellant offered no evidence during the Frye hearing from
any other expert witness that Chief Sponheimer’s method should be properly
categorized as a “negative corpus” or was in any other way unscientific and
not generally accepted in the field of fire investigation. See generally N.T.,
1/28/15, at 111-216.
Chief Sponheimer thereby articulated why his “methodology is
generally accepted in [his] relevant field,” Appellant offered no contradictory
testimony, and this expert testimony was therefore properly admitted
pursuant to Pa.R.E. 702(c). Thus, the trial court did not err in denying
Appellant’s motion in limine to exclude either Chief Sponheimer’s or Mr.
Czajkowski’s expert opinion testimony, and Appellant’s final issue has no
merit.
Accordingly, Appellant’s first issue is waived, and his remaining issues
merit no relief. Consequently, we affirm Appellant’s judgment of sentence.
Judgment of sentence affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/27/18
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